Constitution of the Italian Republic

One of the three originals of the Constitution of the Italian Republic, kept in the historical archive of the Presidency of the Republic

The constitution was drawn up on December 27, 1947 in Palazzo Giustiniani

The constitution of the Italian Republic , in Italian Costituzione della Repubblica Italiana , is the current constitution of the Italian Republic . It determines the legal and political basic order of Italy as a republic and representative democracy with a parliamentary system of government and forms the principles of its legal order .

It is the first real constitution of the Italian State, in the sense that they now have a all other sources of law overall rank is. Legal sources at this level are referred to as "superprimary source" ( fonte superprimaria ) in Italian legal theory, which has only had this concept since 1948 . Lower-ranking norms can only exist insofar as they are consistent with it. Through the election of the Constituent Assembly ( Assemblea costituente ) and the broad consensus for a new order that covered Italy at that time, it is comprehensively democratically legitimized.

The main constitutional text was drawn up by the Constituent Assembly during 1947. The deliberations were based on the experiences of the previous, more than twenty-year-old fascist dictatorship, as well as the just ended Second World War , which had also caused major devastation in Italy. The result, a compromise between the conflicting political movements represented in the assembly, was passed on December 22nd, 1947 and executed and announced the following December 27th. It came into force on January 1, 1948 and forms the constitution in the narrower sense , that is, the document which is called the "constitution" and which is meant by the term "constitution". However , reading the constitution alone is not enough to determine the applicable constitutional law ; it is supplemented by various constitutional laws with which it forms the constitution in the broader sense , i.e. the entirety of all provisions of constitutional rank.

The terminology used in this article corresponds to that which is used in the Autonomous Province of Bolzano for the German-language description of the Italian legal system.

History of origin

The predecessor of the constitution of the Italian Republic was the Statuto Albertino , a constitution imposed in March 1848 in the Kingdom of Sardinia-Piedmont , which became the constitution of the Kingdom of Italy that emerged from Sardinia-Piedmont in 1861 in the course of the unification of Italy .

After the takeover of the fascists was Statuto Albertino in 1925 gradually in much of de facto undermined or completely suspended. With the fall of Mussolini on July 25, 1943, a transitional period began in which the Albertino Statute was formally valid, but in fundamental areas remained ineffective due to the lack of elected representatives. The king and government passed various laws and decrees that temporarily regulated basic state powers and functions. This first transition phase lasted until June 2, 1946, when a referendum was held on the future form of government and elections to a constituent assembly were held at the same time . In the second transitional phase until the new republican constitution came into force, the principles of Statuto Albertino and the earlier liberal parliamentary tradition were based.

Within the Assemblea Costituente , which had 556 members , the so-called "Committee of 75" was formed, which worked out the draft constitution by February 1, 1947. After that, the plenary session of the Constituent Assembly discussed the draft for several months and passed the new republican constitution on December 22, 1947. On December 27, it was signed in the library of the Palazzo Giustiniani in Rome by the provisional head of state Enrico De Nicola and the President of the Constituent Assembly Assembly, Umberto Terracini , countersigned by Prime Minister Alcide De Gasperi and Minister of Justice Giuseppe Grassi . The constitution was promulgated that same day; a special edition of the Official Gazette of the Republic was published for this purpose .

The constitution of the Italian Republic, which came into force on January 1, 1948, is characterized by a compromise character that stems from the immediate post-war history: The anti-fascist members of the “ National Liberation Committee ” decided from the experience of the common resistance struggle against fascism (“ Resistancea ”) (Liberal, socialist, communist and Catholic parties) to work out the new constitution together. This is why there are individual elements in the constitutional text that can be more or less clearly assigned to the respective political groupings.

Special features of the Italian constitution are:

the central role given to Parliament with its symmetrical bicameral system ;
the comparatively low formal influence of the Prime Minister;
the strong emphasis on plebiscitary elements (constitutional amendments may have to be confirmed by referendum, and citizens can also use referendums and legislative initiatives);
the powerful constitutional court;
decentralization in the wake of later reforms

Structure and content

The constitution consists of the basic legal clauses, the first part, which essentially contains the rights and obligations of the citizens, the second part, which is devoted to the building of the state, as well as the transitional and final provisions, which were supposed to close the gaps raised at the time of the constitution. It contains a total of 139 articles, five of which have been abolished without replacement, namely Articles 115, 124, 128, 129 and 130.

The first and second parts are further subdivided into titles. In the second part, the titles are further broken down into sections, depending on the scope of the regulations. The articles of the transitional and final provisions are not listed with Arabic but Roman numerals in order to make the difference to the remaining constitutional provisions clear.

Basic legal principles (Art. 1–12)

The first twelve articles of the constitution lay down the basic principles of state order. The findings of the Constitutional Court have shown that even through constitutional changes, the essence ( nucleo essenziale ) of these principles must not be torn down; The principles on which this is based represent an essential part of the overall concept of the constitution, so that even without one of these principles it would lose its legitimacy and significance.

A preamble is missing; however, Article 1, which is kept in a solemn tone, can be understood as such:

"Italy is a democratic, work-based republic.

The supreme state power belongs to the people, who exercise it in the forms and within the limits of the constitution. "

These legal clauses at the beginning (apart from Article 12, which only defines the shape of the flag of the republic) can be understood as leges generales : all the following provisions in the constitution can be derived from these legal clauses as leges speciales through more or less extensive interpretation , which is why the former must be fully observed when interpreting the constitution and creating new legal norms.

The aforementioned Article 1 provides for the democratic principle; the sovereignty belongs to the people, but in its exercise it is bound to the constitution as common "rules of the game", which u. a. is a commitment to representative democracy, supplemented by isolated elements of direct democracy. The form of government of the republic, for which the Italians had decided in a referendum in 1946, is also determined here. This is closely related to Article 139, which provides that this form of government may not be changed within the existing constitutional order.

The principle of the " repubblica fondata sul lavoro " (repubblica fondata sul lavoro) is clearly a formulation that can be traced back to the socialist and communist parties represented in the Constituent Assembly. Despite its clear nature, it is only a compromise with the conservative Democrazia Cristiana, as some forces wanted to proclaim a "republic of the working people" (Repubblica degli operai).

Article 2 recognizes inalienable human rights. This affects both the rights of the individual and of groups of persons (possibly also legal persons). Nevertheless, political, economic and social solidarity is demanded. According to legal doctrine, two principles can be derived from this article:

The liberal principle is to be understood as meaning that the state has limits in its actions in the form of fundamental rights; At the same time, the republic has the task of not only avoiding violations of human rights, but also preventing them.
the pluralistic principle provides for the protection and recognition of the various communities and groups that shape social life; however, associations of persons must conform to the constitutionally established forms.
The principle of solidarity is lex generalis for some of the constitutional obligations set out below: for example, the duty of parents to raise their children, the duty of citizens to be faithful to the legal system, and (as an obviously much more profane duty) through taxes to maintain them of the community.

In Article 3, the principle of equality is set. It should be noted that although the article speaks of "citizens", it has been established through knowledge that these provisions cannot be restricted to these and thus foreigners and stateless persons also fall under the term.

The two paragraphs deal with the different dimensions of equality:

Paragraph 1 provides for so-called "formal" or "legal" equality. Accordingly, all citizens are equal before the law, regardless of any differences. This principle corresponds to the classical liberal and constitutional ideas, according to which class, religion, ethnicity, gender etc. should not have any effects on the treatment by public authorities. This is based on the rule of law .

Paragraph 2 should be seen in connection with industrialization, which reached Europe from the end of the 18th century (and Italy slightly later). The efforts of the labor movement had made it clear that formal equality, while an important step, becomes less important when in reality there are differences between the people found by the (e.g. economically, physically or psychologically) inferior actors and cannot be made up for by them without favorable circumstances. For the realization of "material" or "actual" equality, the republic should tear down all barriers that prevent the full development of the human person and the effective participation of all workers (also here, de facto, all people are meant). This is the principle of the social welfare and intervention state .

Article 4 supplements the provision on the labor republic in Article 1 and enshrines the right to work. This is a programmatic provision for the holders of state power to promote economic development and full employment. The duty to work in paragraph 2 is to be seen more as a "target determination"; Compulsory labor would be contrary to all other liberal principles.

Article 5 is incorporated into state organization law. Italy is therefore a republican unitary state; division or secession is constitutionally prohibited. It is controversial whether the eventual conversion of Italy into a federal state (which has been discussed for decades but is hardly in prospect) would only require an amendment of this article or a completely new constitution. In any case, alongside the principle of unity, that of diversity is also established. Local authorities should be given extensive benefits, all administration belonging to the state should be decentralized.

In the territory of the republic not only the Italians live as members of the national people (if you look closely, even this is a fiction): in addition to the Italian dialects, some of which (not wrongly) demand recognition as a separate language, languages are spoken in Italy, which undoubtedly set the speakers apart from the majority population. These are the Bavarian dialects and Ladin in South Tyrol and Trentino, Slovenian in the Friuli-Venezia Giulia region , French in the Aosta Valley and Catalan in Sardinia . According to Article 6 , these minorities deserve protection through special provisions, even if the constitution remains undefined as to what such protection should look like. In any case, at least the linguistic minorities mentioned here have benefited from extensive self-government, as their regions have received special statutes which provide for special self-government and decision-making options and which, thanks to their constitutional status, have particular endurance. From this point of view, Article 6 forms the lex generalis for the special statutes. The best-known form of autonomy in German-speaking countries is, of course, the South Tyrolean autonomy .

Relations with the Roman Catholic Church , to which the majority of Italians, regardless of their ethnic group, belonged in 1948 and still today, were normalized by the Lateran Treaty concluded (by the fascist regime) in 1929. These were not revised during the time of the republic, but included in the inventory of the treaties and enshrined in Article 7 constitutionally; however, they do not have constitutional status. Furthermore, the state and the Catholic Church are granted the right to be independent and sovereign in their own area of order (of course, the constitutional order is nevertheless to be observed by the church). This is a commitment to the separation of church and state .

On closer inspection, the provision privileges the Catholic Church, since it is explicitly mentioned in the basic legal provisions of the constitution as the only religious community , and even the only voluntary community at all. However, this is more than understandable given the even greater importance of Catholicism , which it still held in 1948. Furthermore, any semblance of privilege for the Catholic Church is revised by Article 8 ; this puts all religious denominations on an equal footing and also gives non-Catholic religious communities the right to regulate their structure themselves, provided it is not contrary to the constitution. The republic also has the task of regulating its relations with the communities by law with the participation of legitimate representatives.

Article 9 Paragraph 1 is dedicated to the protection of science and culture . Part I of the Constitution will devote itself to these phenomena in detail. The provision in paragraph 2 that the landscape must also be protected is worthy of attention. Especially in recent times, when environmental pollution has moved into the focus of the public and legal doctrine, the Constitutional Court has given this provision a far-reaching value, which is why the protection of the environment is now constitutional. The same paragraph also mentions the artistic and historical wealth of the republic; this is particularly relevant for Italy, as it was (and is in part) the pan-European center of art and culture for centuries or millennia and thus the preservation of past achievements is essential for the identity of the state.

After the disastrous Second World War and the brutal fascist dictatorship, the Constituent Assembly had a comprehensive commitment to modern international law, peace and international cooperation. In this sense, Article 10 elevates customary international law to constitutional status; the Italian constitution had to adapt to this almost automatically (subject to the basic principles of the constitutional order). If the norms of customary international law are not directly applicable , they are to be implemented by the Republic. Foreigners are also protected by regulating their legal status in community with other states and not unilaterally. Paragraph 3 provides for the right of asylum for those foreigners who are hindered in their home country in exercising the rights that the Italian Constitution provides for their citizens. Extradition may not occur for political crimes (except: genocide). In Article 11 , in the first half-sentence, a solemn commitment is made to observe the (attack) war prohibition of the UN Charter and not to resolve international disputes through violence. The second half of the sentence contains a provision which is extremely relevant for the further development of the Italian legal order: namely, the Republic is given the constitutional possibility of relinquishing certain parts of its sovereign rights and entrusting them to an organization which promotes peace and justice among peoples; in addition, the republic should give these organizations extensive support. If this article was intended for a limited transfer of sovereignty to the UN (perhaps some members of the Constituent Assembly saw it as a future world government ), its content with regard to European integration was almost prophetic: this was legitimized by an extensive interpretation of this article. As in the Federal Republic of Germany , which only mentioned the European Union in the Basic Law on the occasion of the Maastricht Treaty in 1992 , it took a long time in Italy before the lex generalis in Article 11 could finally be exonerated. This happened through the new version of Article 117, which now expressly mentions the European Union (or the European Communities ) together with other provisions .

Article 12 elevates the shape of the flag of the Republic to constitutional status:

"The flag of the Republic is the Italian tricolor : green, white and red, in three vertical stripes of equal dimensions."

First part: Rights and duties of citizens (Art. 13–54)

The first part contains the liberal, political and social fundamental rights as well as the obligations of the citizens (diritti e doveri dei cittadini). For a comprehensive description, please refer to the main article " Fundamental Rights (Italy) ".

Title I: Civil Relations (Rapporti civili)

Title II: Social Relations (Rapporti etico-sociali)

Articles 29 to 34 (Title II) cover the protection of marriage and the family , health, the arts, the sciences and the principles of education.

Title III: Economic Relations (Rapporti economici)

Articles 35 to 47 (Title III) regulate the areas of economic activity. It is remarkable how little value is given to private entrepreneurship. While regulations on the protection of workers, working women and the incapable of work, as well as trade union activities and the right to strike are listed first, private companies are only mentioned in Article 41 with the words "Private initiative in the economy is free". As in Germany, private property is subject to social responsibility . This is followed by regulations on expropriations , the promotion of the cooperative system, corporate co-determination as well as private wealth creation and the credit system.

Title IV: Political Relations (Rapporti politici)

Articles 48 to 54 (Title IV) define the fundamental political rights and duties of citizens, including the right to vote , the right to petition, etc. The provisions on military service , which entrust the citizen with the defense of the fatherland as a "holy duty" , are worth mentioning . Also mentioned are the tax liability (with the obligation to introduce progressive taxation) as well as the basic duty of loyalty of citizens to the republic, its constitution and its laws.

Part Two: Building the Republic (Art. 55-139)

The regulations on the construction of the republic (Ordinamento della Repubblica) are much more extensive than the first part, both in the number of their articles and in textual terms. It contains, on the one hand, regulations on the separation of state power , on the structure and tasks of the constitutional organs that take on them, as well as on any auxiliary organs ( horizontal separation of powers ); on the other hand, the subdivision of the republic into regional authorities as well as their competences and their mutual relations is defined ( vertical separation of powers ). At the end there are provisions on the constitution and its validity itself.

Title I: The Parliament (Il Parlamento)

Title I (Articles 55 to 82) defines the parliament, consisting of the Chamber of Deputies and the Senate , as well as the principles of their composition, election, functioning and the legislative procedure including referendums. The two-chamber system envisaged by the constitution with absolute equality between the two chambers of parliament has been the focus of attempts at constitutional reform several times, most recently in 2016 .

Title II: The President of the Republic (Il Presidente della Repubblica)

Title II (Articles 83 to 91) regulates the election of the President of the Republic and defines his rights and duties. He is the head of the state (or the republic) and embodies its unity. He therefore does not belong to any of the powers; In fact, it has powers in the executive (appointing the government), legislative (promulgation of laws, suspensive veto , dissolution of the chambers) and judiciary ( pardons and commutation ), and is intended to act as a mediating body.

Title III: The Government (Il Governo)

Title III with Articles 92 to 100 includes the government appointed by the President of the Republic and dependent on the confidence of the two chambers of parliament, the rights and obligations of the President of the Council of Ministers , the Ministers and the Council of Ministers , the principles of public administration and the definition and tasks of so-called auxiliary bodies of the republic: the National Economic and Labor Council , the State Council and the Court of Auditors . Government regulations are relatively thin; this can be traced back to a deep controversy in the constituent assembly, which e.g. B. the position of the Prime Minister is concerned.

Title IV: The Judiciary (La Magistratura)

Title IV (Articles 101 to 113) lays down the principles of the judiciary , in particular the tasks of the Supreme Judicial Council (Consiglio superiore della Magistratura ) as the self-governing body of the ordinary judiciary. The Italian legal system is characterized by the great independence granted to the judiciary and that the prosecutors belong to this independent power; So they are not bound by instructions like in Germany.

Title V: The regions, the provinces and the municipalities (Le Regioni, le Province, i Communi)

Title V (Articles 114 to 133) has been the most extensive part of the Constitution in terms of text at the latest since its reform through Constitutional Law 3/2001. The constitutional reform was intended to incorporate federalist (federal) and elements of the subsidiarity principle into the constitutional order, after on the one hand the Italian constitution had not undergone any reform in this area since its adoption, and on the other hand the calls for extensive autonomy became louder, especially in the rich north of Italy . Signs of this are the so-called " enumeration principle " in the division of legislative powers (the powers of the state are listed; everything else falls to the regions) (Art. 117, Paragraph 4) as well as the theoretically strong role of the municipalities , which in principle have all administrative powers (Art. 118, Paragraph 1, Clause 1).

The subdivision of the republic into regional authorities is determined, which according to Art. 114 consists of the municipalities , the provinces , the metropolitan cities (introduced in 2001), the regions and the state. Regions and provinces are no longer administrative levels of the state, but together with it form the republic.

The following provision is devoted to the listing of all regions and the division of the power of legislation between the state and regions in Article 117. As an innovation, the European Union and the restrictions it imposes on the regional authorities are mentioned in detail in Title V. Up to this point in time there was no constitutional provision that explicitly regulated Italy's membership of the EU (or the European Communities ); rather, it was based on an extensive interpretation of the second half-sentence of Article 11.

The rights of the regions, their organs and their functioning, as well as the procedure for amalgamating existing or creating new municipalities, provinces or regions are defined in more detail.

Title VI: Constitutional guarantees (Garanzie costituzionali)

Section I of Title VI (Articles 134 to 139) defines the tasks and composition of the Constitutional Court . This is mainly responsible for the (abstract and concrete) control of norms as well as disputes between constitutional bodies and regional authorities (conflict of powers).

Section II determines the possibilities to amend the constitution. Constitutional amendment laws and other constitutional laws are passed by the chambers with two votes each, between which there must be at least three months, with an absolute majority of the deputies and senators. If a constitutional law is approved by both the Chamber of Deputies and the Senate with a two-thirds majority in the second vote , it comes into force immediately. Otherwise, a referendum is required if a fifth of the deputies or senators or 500,000 eligible voters or five regional parliaments request it.

Article 139 puts an explicit limit on constitutional amendments: the change in the form of government (republic) cannot be the subject of this. Since the majority of the citizens of Italy had decided against maintaining the monarchy in a referendum in 1946, the legitimacy of the form of government was seen as sufficient that it could no longer be changed at all. Article 139 is in connection with the transitional provision XIII. and XIV. to see.

Transitional and final provisions

The 18 transitional and final provisions are largely meaningless today. Among other things, they concerned the title and election of the President, the composition of the Senate, the regions, the ban on the re-establishment of the Fascist Party , the expropriation of the Savoy royal family and the abolition of the titles of nobility . In 2002, a provision was repealed that denied members of the House of Savoy the right to vote and the right to hold public office, and forbade former monarchs and their male descendants to return to Italy.

Constitutional Laws

Constitutional laws not only serve to amend, but also to supplement or implement the constitution. There is therefore no incorporation requirement as in the Federal Republic of Germany : the Basic Law can only be changed by laws that change or add to the wording of the same. All provisions in the constitutional status of the federal government can thus be found in the Basic Law. However, the lack of this requirement has not led to the kind of fragmentation that has occurred in Austrian constitutional law .

Constitutional amendment laws change the text of the constitution itself. The first supplementary laws were in part already passed by the Constituent Assembly in 1948, an example of this are the special statutes which some regions have for various reasons. Otherwise, Parliament can resort to the constitutional law if it considers a matter to be exceptionally important and therefore the above-mentioned more difficult conditions for a constitutional amendment should apply. Executing constitutional laws fill in a constitutional reservation, which is provided for in the constitution. Important matters relating to the jurisdiction and position of judges at the Constitutional Court can only be regulated by constitutional laws (Art. 137, Paragraph 1).

The constitution as well as the supplementary and executive constitutional laws thus form the entire formal constitution of the Italian Republic.

Development of the constitution since 1948

1963: Fixed number of 630 deputies and 315 senators instead of variable number of seats, legislative period for both chambers set for five years, Molise region anchored in the constitution
1967: Term of office of constitutional judges reduced from twelve to nine years, minor changes affecting the constitutional court
1989: Ministerial indictment after parliamentary approval before ordinary courts
1991: Right of the President to dissolve parliament towards the end of his term of office (so-called "white semester")
1992: Difficult procedure for amnesty and pardon
1993: Limitation of parliamentary immunity
1999: Possible direct election of the presidents of the regions, rights of the regions, procedural law
2000: Right to vote for Italians living abroad
2001: Parliamentary representation of Italians living abroad, rights of the regions
2002: lifting of the "Savoy ban"
2003: Promotion of equality between men and women
2007: Abolition of the death penalty (only in wartime)
2012: Budget balance, "debt brake"

Constitutional laws have also been changed over time, in some cases as part of the constitutional changes mentioned above.

Web links

literature

Lutz Bergner: The Italian regionalism. A legal comparison with decentralized and federal systems, especially with the German federal system. Publishing house Dr. Kovac, Hamburg 2008, ISBN 978-3-8300-3997-6
Stefan Köppl: The political system of Italy. An introduction. Verlag für Sozialwissenschaften, Wiesbaden 2007. ISBN 978-3-531-14068-1